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Department of the Army, U.S. Army Corps of Engineers, Los Angeles District, Los Angeles, California (Activity) and National Federation of Federal Employees, Local 777 (Petitioner/Exclusive Representative) and International Federation of Professional and T

Department of the Army, U.S. Army Corps of Engineers, Los Angeles District, Los Angeles, California (Activity) and National Federation of Federal Employees, Local 777 (Petitioner/Exclusive Representative) and International Federation of Professional and Technical Engineers, AFL-CIO (Labor Organization)

[ v56 p973 ]

56 FLRA No. 163

DEPARTMENT OF THE ARMY
U.S. ARMY CORPS OF ENGINEERS
LOS ANGELES DISTRICT
LOS ANGELES, CALIFORNIA
(Activity)

and

NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 777
(Petitioner/Exclusive Representative)

and

INTERNATIONAL FEDERATION OF PROFESSIONAL AND TECHNICAL ENGINEERS, AFL-CIO
(Labor Organization)

I. Statement of the Case

This case is before the Authority on an application for review filed by the International Federation of Professional and Technical Engineers, AFL-CIO (IFPTE) on behalf of IFPTE and the National Federation of Federal Employees, Local 777 (Local 777) under section 2422.31 of the Authority's Regulations. The Activity did not file an opposition.

Local 777 held a Montrose [n1]election, voted to change its affiliation from the National Federation of Federal Employees (NFFE) to IFPTE, and filed a petition requesting that its certificates of representation be amended to reflect this change.

The Regional Director (RD) found that Local 777 was recognized as the exclusive representative of separate professional and nonprofessional units of employees. The RD further determined that both units were not afforded due process in the change of affiliation to IFPTE, as required by Montrose, because of the inadequacy of the ballot. Additionally, he found that because separate elections were not conducted, he could not determine the wishes of the professional unit with respect to the change in affiliation. Accordingly, the RD dismissed the petition.

For the following reasons, we deny the application for review.

II. Background and RD's Decision

This case arises from a petition filed by Local 777 seeking to change its affiliation for both units from NFFE to IFPTE. Approximately 228 employees comprise the professional unit and 389 comprise the nonprofessional unit. RD Decision at 3. At the time of the vote there were 83 dues paying members, geographically dispersed throughout the Activity. Id.[n2] The Activity and Local 777 are parties to a collective bargaining agreement that applies to both units.

On August 3, 1999, the President of Local 777 distributed an e-mail notice to all employees in both units indicating, among other things, that a special meeting would be held on August 11 and the time and place for the meeting. The notice described the purpose of the meeting as "what was happening at the national level and our response[,]" and invited employees located away from the site of the meeting to participate by telephone. Id. at 4. No employee made such a request.

The meeting was held on August 11. Thirteen bargaining unit employees, including members and nonmembers from both units, attended the meeting, which lasted approximately 35 minutes. The President of Local 777 announced that the reason for the meeting was to discuss a proposed change in affiliation from NFFE, Local 777 to IFPTE. The President read a letter from members supporting the change and also described a "pending national level affiliation of NFFE with the International Association of Machinists and Aerospace Workers, AFL-CIO (IAM)." Id. A discussion of affiliation issues followed. The President discussed the pending affiliation of NFFE with IAM, a possible change in affiliation from NFFE, Local 777 to IFPTE, and the possibility of a change in affiliation of Local 777 from NFFE, Local 777 to the American Federation of Government Employees, AFL-CIO (AFGE). At the end of [ v56 p974 ] the meeting, the employees voted to conduct a mail ballot election among all members of Local 777, to vote on whether they wished to remain with NFFE or change affiliation to IFPTE or to another, unnamed union.

Later, an election committee prepared a mail ballot package for each member that consisted of: Election instructions; a ballot; a secret ballot envelope and a pre-addressed, stamped return envelope; a brochure, published by IFPTE, concerning membership benefits; and a copy of the minutes of the August 11 meeting.

According to the minutes, the purpose of the meeting had been to discuss the future of Local 777 and the changing of its affiliation to IFPTE. The minutes state that a group of members had, in accordance with the local's constitution, asked that the meeting be conducted. The minutes also reflect that the President informed the attendees that "NFFE had decided to affiliate with IAM and that there had not been any information from NFFE about this affiliation, other than that the membership dues would eventually triple in the future and that the officers would remain the same." Id. at 5. The President also offered to make available e-mails received from other locals concerning the affiliation with IAM. The minutes reflect that an attendee commented further on the increase in dues and how it might have a negative affect on future membership and proposed that the local affiliate with IFPTE, which, if done, would decrease membership dues.

The minutes further show that questions were asked about NFFE's affiliation with IAM, including the question, "[i]f the Machinists strike, would we be allowed to cross the picket line?" Id. The minutes do not reflect what answer, if any, was given to this question. The minutes state that there was also discussion of strike issues involving federal workers and IAM. The minutes further reflect that: (1) someone asked if the IFPTE represented clericals and the response was that it would represent all unit employees; (2) someone asked if the Local 777 would retain its bylaws and the right to ratify the constitution, and the answer was affirmative; (3) it was mentioned that once NFFE affiliated with IAM, the local would not be able to change affiliation; and (4) a motion was passed to send ballots to members asking the members to choose if they wished to "remain with NFFE/IAM or change to IFPTE or another union affiliation." Id. The minutes do not reflect what was said concerning affiliation with AFGE, nor do the minutes describe what was meant by offering members the ability to vote on affiliating with another union.

The ballot consisted of the following one page document:

(Top Portion)
Dear Member, NFFE Local 777,

This is your notification that a change is taking place within the National Federation of Federal Employees. The
current President of NFFE, Rick Brown, has announced that he has decided to affiliate with a different union,
the [IAM].

Our Local 777 Membership has expressed shock and dismay regarding the affiliation with [IAM]. A special
meeting was held on 11 August 1999 to address these concerns. The minutes of that meeting are include[d] in
this package.

Several of our members have investigated other options for affiliation. Enclosed is a brochure identifying
another option. [n3] We need to act immediately to decide whether or not to affiliate with [IAM], or make a different
choice.ONCE NFFE HAS AFFILIATED WITH [IAM] WE WILL NO LONGER HAVE A CHOICE.
This is the reason for the short notice.

Please mark your ballot and mail it back so that it will be received at the P.O. Box on or BEFORE 30
AUGUST.

RD Decision at 6 and Application, Attachment.

The bottom part of the document contained a heading "Official Ballot" and listed the following three options: NFFE; IFPTE; and "Other[.]" A space was provided for the voter to mark his or her choice.

The mail ballot packages were mailed on August 23 and on September 1, committee members met and counted the ballots, using Local 777's membership roster to mark off the names of those who had returned their ballots. Thirty members voted in the election. The tally reflects the votes as follows: Five for NFFE; 25 for IFPTE; and none for "Other[.]" There is no record of how members in each unit voted.

During the processing of the petition, questions arose concerning how many of the voters were members of each unit. Local 777 provided information indicating that of the 30 voters, 19 were from the nonprofessional unit and 11 were from the professional unit. The Activity and the local were in agreement as to the employment status of all but five of the voters. After [ v56 p975 ] investigation, the RD found that two of the five individuals, one believed to be nonprofessional one believed to be professional, were not employed in either unit at the time of the election. The RD also found that the remaining three voters Local 777 maintained were professionals were not professional employees within the meaning of § 7103(a)(15) of the Federal Service Labor-Management Relations Statute.

Citing Montrose and other Authority precedent, the RD set forth the standard for determining whether a change in affiliation should be granted. The RD recognized that in order for such a petition to be granted, the proposed change must insure that the members of the union in the affected unit were afforded due process in voting on the change and that the change must neither affect the continuity of unit employees' representation nor leave open any question concerning such representation. In support, the RD cited United States Dep't of the Interior, Bureau of Indian Affairs, Navajo Area, Gallup, N.M., 34 FLRA 428 (1990) (BIA); NAGE/SEIU, Local 5000, AFL-CIO, 52 FLRA 1068 (1997); and Union of Federal Employees, 41 FLRA 562 (1991) (UFE).

Applying Authority precedent, the RD found that the notice of the meeting did not meet the Montrose requirements because it "did not clearly and adequately inform employees of the purpose of the special meeting." RD Decision at 9. Nevertheless, citing Authority precedent, the RD determined that this finding was not dispositive of the issue because Local 777 represents geographically dispersed units of employees, and it was therefore not feasible to hold a meeting of all members. Notwithstanding this finding, the RD concluded that the election procedures used to conduct the affiliation vote did not afford employees the requisite due process, based on his evaluation of the mail ballot package and the election process for the professional and the nonprofessional units.

With respect to the mail ballot package, citing UFE, the RD stated that to ensure due process in cases involving a change in affiliation, Montrose requires that the ballot clearly state the full scope of the change proposed and the choices inherent therein, so that members may make a reasoned decision on how to vote. The RD found that Local 777's ballot "failed to explain the choices inherent in voting for any of the three options and thus, the voters were unable to make a reasoned decision on how to vote." Id. The RD also rejected Local 777's claim that the August 11 minutes supported a finding that the ballot met the Montrose requirements. The RD concluded that the ballot "when read in conjunction with the minutes . . . still did not give voters information as to the choices inherent in voting for any particular option on the ballot, as required by Montrose." Id.

The RD stated that based on the minutes, "it could be concluded that inherent in a vote for NFFE would be a dues increase and the maintenance of the same officers of the Local. However, there was no information on how remaining as Local 777, with NFFE, which had affiliated with IAM, would affect representation matters . . . ." Id. The RD also stated that an employee could assume from reading the ballot and the minutes that a vote to affiliate with IFPTE would result in a decrease of dues, the retention of the local's bylaws, and the right to ratify the constitution. However, according to the RD, there was no information concerning whether the officers would remain the same or how representation matters would be impacted in an affiliation with IFPTE. The RD further noted that the ballot gave voters a choice of "Other[,]" but the minutes did not shed any light on the meaning of this option.

Accordingly, the RD found that the ballot did not meet the Montrose standard since it did not advise employees with sufficient clarity of the choices inherent in the proposed affiliation, and further found that the ballot, even read in conjunction with the minutes, did not meet the Montrose standard. He concluded, therefore, that the employees did not have sufficient information to cast an adequately informed vote as required by Montrose.

With respect to the voting process, before the RD, Local 777 argued that "one election was appropriate, because the parties have always treated the two units as one unit." Id. at 2. Citing United States Dep't of the Interior, Bureau of Land Mgt., Phoenix, Ariz., 56 FLRA 202 (2000), the RD stated that the Montrose standards are applied on a unit-by-unit basis. The RD found that Local 777 did not hold separate elections for the professional and nonprofessional units and that it was not "possible to determine if a majority of members in each unit voted for the change of affiliation." Id. at 10.

Local 777 further argued that since 19 voters were nonprofessionals and 11 were professionals, and since the vote was 25 to five in favor of affiliation, it did not matter that separate elections were not conducted. The RD, however, found that Local 777's estimation of membership and unit status was inaccurate, since the ballots of one professional and one nonprofessional employee could not be counted because neither was employed in either unit at the time of the election, [n4] and since three voters whom Local 777 maintained were professionals were instead nonprofessional employees. [ v56 p976 ] Accordingly, the RD concluded that 28 ballots were valid, 21 of which were cast by nonprofessional employees and only seven by professional employees. Since five votes were cast against affiliation, the RD found that it could not be determined that a majority of the professionals voted for the change.

Accordingly, the RD concluded that the employees in both units "were not afforded the due process in the change of affiliation, as required by Montrose, because of the inadequacy of the ballot." Id. at 12. Additionally, the RD concluded that because separate elections were not conducted, the wishes of the professional unit on affiliation could not be determined. He therefore dismissed the petition.

III. Local 777's and IFPTE's Application for Review

IFPTE contends that "due process requirements articulated by the Montrose decision have been met and the [p]etition should be granted with respect to the nonprofessional unit." Application at 8.

First, IFPTE challenges the RD's determination that the ballot failed to state the choices inherent in the proposed change in affiliation. Referencing § 2422.31(c)(3)(iii) of the Authority's Regulations, IFPTE contends that the RD's Decision "contains a significant factual error on which the Decision is based." [n5]Id. at 2. Referring to the RD's statement that "there [was] no information on how remaining as Local 777, with NFFE, which had affiliated with IAM, would affect representation matters . . . [,]" IFPTE contends that NFFE had not affiliated with IAM at the time Local 777 conducted the meeting and election to change affiliation. Id. IFPTE refers to language in the ballot package in support of its position and asserts that "[t]his inaccurate RD factual finding is prejudicial." Application at 3.

Second, citing § 2422.31(c)(3)(i), IFPTE contends that the RD failed to apply established law. IFPTE argues that the RD "misreads and misapplies the Authority's decision in [UFE] to prescribe the specific information which must be provided on the ballot or in the ballot package." Id. at 6. IFPTE further asserts that in UFE the "ballot package failed to identify by name the independent labor organization . . . at all[,]" while in this case, the "ballot clearly states the identity of the affiliation choices known to the officers and members at the time the election was held." Id. at 3. According to IFPTE, this "is all that is required by [UFE]." Id.

Also, citing United States Dep't of the Army, Rock Island Arsenal, Rock Island, Ill., 46 FLRA 76 (1992) (Rock Island), IFPTE asserts that when Local 777's "ballot package is taken as a whole[,]" the requirement under Authority precedent that the ballot clearly state the change proposed and the choices inherent therein is met. Id. at 4. IFPTE contends that the ballot package contained the special meeting minutes as well as the ballot, which explained its purpose, and points to specific wording in the minutes and the ballot that it contends clearly informed employees of Local 777's affiliation choices.

IV. Analysis and Conclusions

A. The RD Did Not Fail to Apply Established Law

In order to amend the designation of an exclusive representative in an existing unit to reflect a change in affiliation, the procedures set forth in Montrose must be followed. [n6]Florida NG, 25 FLRA 728 (1987). See also Florida Nat'l Guard, St. Augustine, Fla., 34 FLRA 223, 227 (1990). Thus, to assure that an amendment of certification conforms to the desires of a union's membership and that no question concerning representation exists, four procedural criteria must be met, at a minimum:

(1) A proposed change in affiliation should be the subject of a special meeting of the members of the incumbent
labor organization, called for this purpose only, with adequate advance notice provided to the entire membership;
(2) the meeting should [ v56 p977 ] take place at a time and place convenient to all members; (3) adequate time for
discussion of the proposed change should be provided, with all members given an opportunity to raise questions
within the bounds of normal parliamentary procedures; and (4) a vote by the members of the incumbent labor
organization on the question should be taken by secret ballot, with the ballot clearly stating the change proposed
and the choices inherent therein.

Montrose, 4 A/SLMR at 860. Further, with respect to notice of a special meeting and the ballot, Montrose requires
that both "accurately specify the full scope of the proposed change in affiliation." UFE, 41 FLRA at 575. Also,
where employees in a unit are geographically dispersed so that it is not feasible to hold a meeting of all members, the
failure to do so in such circumstance is not cause to invalidate the election. BIA, 34 FLRA at 445.

IFPTE argues that UFE does not support the RD's decision because the ballot package invalidated in that case failed to identify the independent labor organization by name at all, while in this case, the ballot clearly states the identity of the affiliation known to the officers and members at the time of the election. However, although the ballot specifically identified the names of two choices, NFFE and IFPTE, it did not identify any organization associated with the choice of "Other[,]" nor did the minutes shed any light on the meaning of this option or what ramifications its selection would have on the unit. The inclusion of the option "Other" on the ballot without explanation is confusing because it does not indicate whether this option refers to AFGE, to IAM, or to some other organization. Consequently, although the ballot specifically identified two choices, it did not accurately identify the third choice of "Other" and thus provided bargaining unit employees insufficient information to make a knowledgeable decision pursuant to the requirements of UFE and Montrose. We conclude, therefore, that the ballot does not satisfy the UFE standard that the ballot accurately specify the full scope of the proposed change in affiliation.

IFPTE further argues that the ballot package as a whole supports a determination that the ballot met the Montrose requirements, citing Rock Island as support. In Rock Island, voters were given a ballot marked with two options. Each option was accompanied by a list of the inherent choices of the vote, including "matters concerning dues assessments, terms and conditions of employment, local officers, representation at national conventions and the constitution that would govern the Local's affairs." Id., 46 FLRA at 78. The Authority found that the ballot in Rock Island met the Montrose requirement that the ballot accurately specify the full scope of the proposed changes.

In this case, unlike in Rock Island, where the two choices were clearly identified on the ballot, neither the minutes nor the ballot accurately identified the choice of "Other[,]" as required by Montrose and UFE. We therefore find, without reaching the RD's other determinations concerning the inherent choices of the vote, that the evidence does not show that the RD failed to apply established law.

B. The Decision Is Not Based on Clear and Prejudicial Error Concerning a Substantial Factual Matter

Referring to the RD's statement that "there [was] no information on how remaining as Local 777, with NFFE, which had affiliated with IAM, would affect representation matters . . . [,]" IFPTE contends that NFFE had not affiliated with IAM at the time Local 777 conducted the meeting and election in question. Application at 2. IFPTE asserts that this inaccurate RD factual finding is prejudicial.

The RD's Decision shows that the RD recognized the "pending national level affiliation of NFFE with [IAM.]" RD Decision at 4. [n7] Further, in the minutes, NFFE refers to the national union as "NFFE/IMA [sic]," indicating an affiliation. Therefore, even assuming that the RD's statement concerning NFFE's affiliation with IAM is clearly erroneous, this error would not constitute a prejudicial error concerning a substantial factual matter because, as found above, other evidence supports the RD's determination that the election package used to conduct the affiliation vote did not afford employees the requisite due process required by Montrose.

Consequently, IFPTE has not established that the RD's statement, even if erroneous, prejudicially affected IFPTE's and Local 777's rights.

The RD found that it was unclear exactly how many of these members were in each unit. The membership roster identified 52
members as nonprofessional employees and 22 as professionals. Local 777 did not know the status of the remaining
nine members.

Footnote # 3 for
56 FLRA No. 163

This brochure pertained to the IFPTE.

Footnote # 4 for
56 FLRA No. 163

Although not a dispositive point, Chairman Wasserman notes that eligibility to vote in a union members' election cannot be
determined solely by employment status, since membership is based upon the union's constitutional criteria. Authority precedent
does not support the RD's finding on this issue.

Footnote # 5 for
56 FLRA No. 163

5 C.F.R. § 2422.31(c) provides, in pertinent part, that the Authority may grant an application for review when the application
demonstrates that review is warranted on one or more of the following grounds:

(1) The decision raises an issue for which there is an absence of precedent;

Chairman Wasserman again expresses his view that the Montrose doctrine may not be appropriate for "adversarial takeovers,"
where there is no evidence that the parent labor organization has consented to the change in affiliation by one of its locals. However,
because no party has raised this issue, he will not address it further.

Footnote # 7 for
56 FLRA No. 163

See also RD's Decision at 6, where the RD quoted the ballot as stating that "[o]nce NFFE has affiliated with [IAM] we will no
longer have a choice."